Anyone reading about bankruptcy law will most likely see repeated references to the 2005 Amendments to the Bankruptcy Code. However, the significance of these amendments may not be clear to those who were not practicing bankruptcy, or were not personally involved in the process, in 2005. In April 2005, President Bush signed what has been described by one author as "the biggest rewrite of U.S. bankruptcy law in a quarter century ... making it harder for debt-ridden Americans to wipe out their obligations." "Bankruptcy should always be a last resort in our legal system," President Bush said in 2005, shortly before signing the legislation. "If someone does not pay his or her debts the rest of society ends up paying them." The amendments took effect in October 2005.
Under the new law, many debtors had to work out repayment plans, when they would have otherwise been able to have their obligations erased in bankruptcy court under the pre-2005 law. The measure requires people with incomes above a certain level to pay some or all of their credit-card charges, medical bills and other obligations under a court-ordered bankruptcy plan. Those who fought the bill's passage said the change would fall especially hard on low-income working people, single mothers, minorities and the elderly and would remove a safety net for those who have lost their jobs or face crushing medical bills. In the four years that have followed, it remains debatable whether that has been the case, although at least one author has recently written that medical bills, in particular, have been a problem for many since the 2005 Amendments took effect.
The financial services industry argued that bankruptcy frequently is the last refuge of gamblers, impulsive shoppers, divorced or separated fathers avoiding child support, and multimillionaires who buy mansions in states with liberal homestead exemptions to shelter assets from creditors.
At the time of enactment, it was estimated that between 30,000 and 210,000 people — from 3.5 percent to 20 percent of those who dissolve their debts in bankruptcy each year in exchange for forfeiting some assets — would be disqualified from doing so under the legislation, according to the American Bankruptcy Institute. Under the pre-2005 system, a federal bankruptcy judge determined whether individuals must repay some or all of their debt. Under the new law, those with insufficient assets or income can still file a Chapter 7 bankruptcy, which, if approved by a judge, erases debts entirely after certain assets are forfeited. Those with income above their state's median income who can pay at least $6,000 over five years — $100 a month — are forced into Chapter 13, where a judge then orders a repayment plan.
A comprehensive analysis of the 2005 changes has been prepared by the U.S. Bankruptcy Court for the Eastern District of California, which can be accessed here. If you are thinking about seeking bankruptcy protection, you should contact a bankruptcy attorney to discuss how the 2005 changes might effect your petition.
-Drew Broaddus